Alomari v. Ohio Department of Public Safety et al

Filing 86

ORDER granting 60 Motion for Summary Judgment; denying 77 Motion for Summary Judgment. This case is DISMISSED. Signed by Judge Algenon L. Marbley on 8/13/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OMAR ALOMARI
Plaintiff,
v.
OHIO DEPARTMENT OF
PUBLIC SAFETY, et al.,
Defendants.

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Case No. 2:11-CV-613
JUDGE ALGENON L. MARBLEY
Magistrate Judge Deavers

OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendants’ Motion for Summary Judgment of
Defendants Ohio Department of Public Safety, Director Thomas P. Charles in his Official
Capacity, Thomas J. Strickrath, and William F. Vedra, Jr. (Doc. 60), and Plaintiff Omar
Alomari’s Motion for Summary Judgment. (Doc. 77). For the reasons stated below,
Defendants’ Motion is GRANTED and Plaintiff’s Motion is DENIED.

II. BACKGROUND
A. Factual Background
In July 2005, Plaintiff Omar Alomari (“Plaintiff” or “Alomari”) began working at Ohio
Homeland Security (“OHS”), as part of the Ohio Department of Public Safety (“ODPS”). The
purpose of his position was to create a liaison at OHS between the law enforcement and Muslim
communities in central Ohio. From approximately November 2005 through October 2006,
Alomari worked an average of 40 hours per week as a contract employee of OHS. Alomari
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initially reported to Executive Director of Homeland Security, John Overly, before Overly was
succeeded by Bill Vedra.
During his employment, Alomari conducted or participated in presentations or trainings
for different law enforcement-affiliated groups, often discussing Arabic/Islamic culture and
radicalization. Some of Alomari’s presentations were met with conflicting, and some
controversial, information from co-presenters. In fall 2008, Alomari spoke about radicalization
at a Terrorism Liaison Officer (“TLO”) training. Following Alomari’s presentation, Columbus
Police Officer Todd Sheets spoke about international terrorism. At the beginning of Sheets’
presentation, he made what Alomari considered to be contradictory comments about Alomari’s
speech. Alomari complained to Vedra about the content of Sheets’ presentation. Similarly,
Alomari attended a January 2009 training held at the Columbus Police Academy, and put on by a
group called Security Solutions International (“SSI”). Alomari felt that the speaker misstated a
great deal of allegedly historical information about the Islamic community. In response to the
SSI training, Alomari alleges that he wrote Vedra a six or seven page report, explaining why he
thought the presentation undermined the outreach efforts of OHS.
On April 13, 14, and 15, 2010, the Columbus Police Department held a two-and-a-half
day training entitled, “Understanding the Threat to America” at the Columbus Police Training
Academy. The training was run by John Guandolo and Stephen Coughlin. Neither Vedra nor
Alomari attended the training session. During the training, Vedra received phone calls from
training attendees who thought that the presenters were making offensive statements about
Alomari. Vedra was also told that Coughlin and Guandolo showed a picture of Vedra, Alomari,
and a representative from the Council on American-Islamic Relations (“CAIR”)1 that had been

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Certain CAIR officials had been investigated by the FBI, leading the FBI to cut off association with CAIR.
According to Defendants, “OHS had asked the FBI about CAIR, and OHS was told that the FBI had no problem

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taken at an interfaith forum Alomari had organized. Presumably using the photo as “evidence,”
Coughlin and Guandolo accused Alomari and Vedra of associating with a terrorist organization.
Starting in March 2010, and continuing throughout the course of his employment,
Alomari was met with criticism from The Jawa Report, an anonymously-authored extreme Right
Wing blog. The blog attacked Alomari on numerous grounds, ranging from his testimony before
a Congressional committee to a 40-page cultural guide Alomari had authored. Based on
Alomari’s work, the blog alleged that Alomari was promoting Islamist propaganda. April 2010
posts targeted both Alomari and Vedra, accusing both men for their association with CAIR. The
blog went as far as to claim that Alomari was working at ODPS as a mole for CAIR, and Vedra
knowingly permitted Alomari to work as a terrorist insider. The blog often claimed to have
received information from unnamed insiders at ODPS.
On April 20, 2010, the Jawa Report began writing posts about Alomari’s removal from
his previous position at Columbus State Community College (“CSCC”), a position that had not
been included on Alomari’s employment records with ODPS. The April 20, 2010 post alleged
that Alomari’s removal from CSCC was due to Alomari’s engagement in a sexual relationship
with one of his female students. An April 21, 2010 post again referenced Alomari’s termination
from CSCC based on his involvement with a female student, but went onto discuss ODPS
employee Olen Martin’s educational background. According to an unnamed insider, Martin had
given a fake bachelor’s degree and fake master’s degree on his ODPS employment application.
The post claimed that Suffield University, the school from which Martin obtained his degrees,
was a “known diploma mill.” (Defendants’ Motion for Summ. Judg., Doc. 60 at 15). On April
27, 2010, the Jawa Report published another post about Alomari, this time concerning Alomari’s

with CAIR’s office in Columbus, Ohio. Accordingly, OHS maintained a dialogue with the local CAIR office.”
(Defendants’ Motion for Summ. Judg., Doc. 60 at 13).

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lawsuit against the student with whom he had been involved at while employed at CSCC. Vedra
did not read any of the Jawa Report posts, and did not consider it to be a legitimate news source.
Shortly thereafter, a few media outlets contacted ODPS and inquired about whether
Alomari had omitted his employment history with CSCC, and any related incidents, on his
ODPS employment records. Vedra was made aware of the media requests, and asked Alomari if
there was any truth to them. Alomari stated that he had not included his employment with CSCC
on his application.2 Based on Alomari’s admission that he had failed to include his employment
with CSCC on his ODPS applications, ODPS initiated a disciplinary process, which led to an
administrative investigation (“AI”). The investigation was conducted by Kathleen Botos, an
investigator in ODPS’ AI unit.
Botos was instructed to start her investigation by reviewing the Jawa Report posts
concerning Alomari’s employment at CSCC, and determine if there was any truth to it.
Following some online research, Botos found court records concerning Alomari’s lawsuit against
his former student, whom he had sued following his termination from CSCC.3 Botos also
examined Alomari’s civil service application in his personnel folder, which did not include any

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 Alomari had been employed as a professor at CSCC from 1991 through 1996. In spring 1996, Alomari became
romantically involved with Sheri Lenk, a CSCC student. They dated until September 1996, when Lenk ended the
relationship, but then attempted to rekindle the relationship numerous times. On December 2, 1996, Lenk filed a
sexual harassment complaint against Alomari with Dr. Lee Willis, the CSCC Vice President for Student Services.
CSCC conducted an investigation based on Lenk’s allegations, which eventually resulted in Alomari’s removal from
his position.
On December 31, 1996, shortly after Alomari’s termination from CSCC, attorney Emily Lewis informed
CSCC that Alomari was filing a grievance regarding his discharge from CSCC. The grievance procedure included a
case presentation to a panel of faculty and staff, who were to consider whether Lenk and Alomari had been sexually
involved while Lenk was enrolled in Alomari’s class. Though the panel found that the evidence did not
conclusively show that Alomari had a consensual sexual relationship with Lenk while she was his student, CSCC’s
Vice President for Academic Affairs affirmed the findings of the investigation committee, and upheld Alomari’s
termination. It was not until the end of 1998, however, that Alomari reached a settlement with CSCC.

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On January 19, 1999, Alomari filed a lawsuit against Lenk in the Franklin County Court of Common Pleas,
alleging: intentional infliction of emotional distress; defamation; tortious interference with a contract; and
negligence. Lenk filed a counterclaim against Alomari, alleging: intentional infliction of emotional distress;
negligent infliction of emotional distress; fraudulently inducing her into an intimate relationship which broke up her
marriage; and sexual battery. On March 30, 2000, Lenk moved from summary judgment, which the Common Pleas
Court granted on August 9, 2000.

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information about his employment with CSCC. Alomari claims that he filled out a handwritten
application, for which he was told only to include relevant previous employment, and thus
neglected to include CSCC. Botos did not find a handwritten application in his personnel file.
Alomari further alleges that, when he was initially hired, he hand-delivered a copy of his resume,
despite being asked to email a copy; Botos, however, did not see a copy of Alomari’s resume in
his personnel folder. Upon review of a copy of the background investigation done on Alomari,
Botos did not see CSCC listed as a previous employer.
On May 13, 2010, Botos conducted an interview with Alomari as part of the AI. In
keeping with custom practice, the interview was recorded. During the interview, Alomari
conceded that he did not include CSCC, or various other previous employers, on his employment
application. According to Alomari, he felt he only needed to include any previous employment
that was relevant to the job he was performing for ODPS. Alomari told Botos that he had not
taught Islamic studies, or anything similar. Furthermore, he stated that he had resigned from
CSCC, after submitting his resignation pursuant to a settlement in arbitration. According to
Alomari, CSCC did not terminate his employment. After Botos stated that she had
documentation from the Ohio Civil Rights Commission explaining that Alomari had filed a
wrongful termination charge against CSCC, Alomari then said that CSCC had threatened to fire
him. Alomari also said that he had been investigated for having a relationship with a CSCC
student, but that she had not been his student—a statement he doubled back on when questioned
by Botos. When asked about his lawsuit against Lenk, Alomari insisted that, while he could not
remember her charges against him, he had dropped the lawsuit.
Following her interview with Alomari, Botos compiled documents she had received from
various sources, including documents obtained by CSCC through a public records request. In

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her report, Botos found that: Alomari had purposely omitted numerous previous employers from
his background investigation and employment application, including CSCC; the evidence
showed that Alomari had not resigned from CSCC, but was terminated for engaging in a sexual
relationship with one of his students; Alomari was dishonest during his AI interview with Botos;
and Alomari knowingly ignored the ODPS application instruction that said to include all
previous employers, thereby giving the impression of impropriety regarding his removal from
CSCC.
Subsequently, ODPS Director Thomas Strickrath called a meeting to discuss Alomari and
to determine whether he should be disciplined. Vedra, ODPS Assistant Director George Maier,
ODPS Human Resources Director Rob Young, Larry McCartney, interim ODPS general counsel
Heather Frient, and ODPS Deputy Chief of Staff Mike McCann attended the meeting. The
group decided that Alomari should be removed, but Vedra, in particular, recommended that
Alomari be removed based on the findings of the AI. Strickrath was responsible for making the
final decision, and it was his opinion that, if the circumstances surrounding Alomari’s
termination from CSCC has been known at the time he applied, Alomari would likely not have
been hired. Alomari was terminated on June 30, 2010.
Immediately following Alomari’s termination from OHS, he appealed the decision to the
State Personnel Board of Review (“SPBR”). During discovery on the merits of removal, ODPS
claimed that Alomari’s duties had made him an unclassified fidiuciary, as a high-level
policymaking employee for ODPS, under O.R.C. § 124.11(A)(9). On May 3, 2011 and June 27,
2011, hearings were held before an Administrative Law Judge (“ALJ”) of the SPBR. On
October 20, 2011, the ALJ issued a Report and Recommendation, finding that Alomari’s duties
at ODPS had resulted in his being an unclassified fiduciary to ODPS. Moreover, the ALJ found

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that Alomari was a liaison between the U.S. Department of Homeland Security and OHS.
Around January 6, 2012, the SPBR adopted the ALJ’s Report and Recommendation and
dismissed Alomari’s civil service appeal.
B. Procedural Background
Plaintiff filed his Complaint on July 13, 2011, alleging six claims: (1) national origin
discrimination, in violation of 42 U.S.C. § 2000e et seq.; (2) religious discrimination, in violation
of 42 U.S.C. § 2000e et seq.; (3) race discrimination, in violation of 42 U.S.C. § 1981; (4)
retaliation for opposing discrimination, in violation of 42 U.S.C. § 1981; (5) equal protection, in
violation of 42 U.S.C. § 1983; and (6) First Amendment retaliation, in violation of 42 U.S.C. §
1983. (Doc. 2). On October 21, 2013, Defendants filed their Motion for Summary Judgment.
(Doc. 60). Two days later, on October 23, 2013, Plaintiff filed his Motion for Summary
Judgment. (Doc. 77).4
On July 17, 2014, this Court held oral argument on the parties’ Motions for Summary
Judgment, and counsel for all parties participated. This matter is, therefore, ripe for review.

III. STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of
that fact would establish one of the elements of a claim and would affect the application of
governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)).

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During the discovery process, Plaintiff filed two Motions to Compel Discovery, seeking to obtain information on
matters Defendants argued were privileged. (Doc. 33, Doc. 44). After both Motions were denied by the Magistrate
Judge (Doc. 35, Doc. 41, Doc. 78), Plaintiff filed Objections (Doc. 38, Doc. 43) that were resolved by this Court in
its June 19, 2014 Order. (Doc. 85).

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A movant for summary judgment meets its initial burden “by ‘showing’ – that is,
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts
showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to
“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess
the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227,
230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir.
1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and
reasonable inferences must be viewed in the light most favorable to the party opposing the
motion. Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 759 (6th Cir. 2010) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The standard of review for cross-motions for summary judgment “does not differ from
the standard applied when a motion is filed by only one party to the litigation.” United States
S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).

IV. LAW & ANALYSIS
At oral argument, Plaintiff moved for an adverse inference regarding Alomari’s resume,
which was never produced during discovery. The Court must address Plaintiff’s request before
moving forward in its analysis.
To establish an adverse inference instruction based on the destruction of evidence,
Alomari, as the moving party:

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“must establish: (1) that the party having control over the evidence
had an obligation to preserve it at the time it was destroyed; (2)
that the records were destroyed with a culpable state of mind; and
(3) that the destroyed evidence was relevant to the party's claim or
defense such that a reasonable trier of fact could find that it would
support that claim or defense.”
Beaven v. United States DOJ, 622 F.3d 540, 553 (6th Cir.2010) (quoting Residential Funding
Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)). Plaintiff argues the Court
should grant an adverse inference regarding Alomari’s resume, the handwritten application he
completed, and various other pieces of evidence that have not been produced during discovery.
Regarding Plaintiff’s resume, Defendants state that they have been unable to produce it, because
it is not in Alomari’s personnel file, where it should be located. Defendants made no argument
as to the other pieces of evidence referenced by Plaintiff.
Considering the facts in the light most favorable to Plaintiff, he can arguably establish the
first and third prong of the adverse inference test. Plaintiff has not shown, however, that ODPS
destroyed the records with a culpable state of mind. Moreover, there is a disputed issue of
material fact that ODPS ever possessed the resume in the first place. Thus, Plaintiff’s request for
an adverse inference is DENIED.

A. National Origin and Religious Discrimination, and Equal Protection
The Court now turns to Plaintiff’s claims of discrimination based on his national origin,
religion, and race. Counts I and II, national origin discrimination and religious discrimination,
respectively, are brought pursuant to Title VII. Count V alleges an equal protection violation, in
violation of 42 U.S.C. § 1983. Within his equal protection claim, Plaintiff inherently raises a
race discrimination claim.5 Moreover, Plaintiff’s claims for national origin and religious
discrimination, as well as his equal protection violation, are each raised within the confines of

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Plaintiff cites his race throughout Count V of the Complaint. (Complaint, Doc. 2 at 14).

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workplace conduct. It is well settled that “[t]he elements for establishing an Equal Protection
claim under § 1983 and the elements for establishing a violation of Title VII disparate treatment
are the same.” Deleon v. Kalamazoo County Road Com’n, 739 F.3d 914, 917-18 (6th Cir. 2014)
(internal citations omitted); see also Toth v. City of Toledo, 480 F. App’x 827, 832 (6th Cir.
2012). The Court will, therefore, address Plaintiff’s discrimination and equal protection claims
within one analysis.
Title VII prohibits employment practices that “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). To
establish discrimination under Title VII, a plaintiff may “introduc[e] direct evidence of
discrimination or…[prove] inferential and circumstantial evidence which would support an
inference of discrimination.” DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004) (quoting Kline
v. TVA, 128 F.3d 337, 348 (6th Cir.1997)).
1. Plaintiff’s Title VII Claims
Defendants assert that Plaintiff’s claims should be considered under the familiar
McDonnell Douglas burden-shifting framework. See White v. Baxter Healthcare Corp., 533
F.3d 381, 390 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Plaintiff, however, presents arguments under McDonnell Douglas, and through a mixed-motive
analysis. Under the McDonnell Douglas standard, the Court considers only circumstantial
evidence of Plaintiff’s Title VII claims.6 See Serrano v. Cintas Corp., 699 F.3d 884, 892-93 (6th
Cir. 2012). Under the mixed-motive analysis, the Court may consider direct or circumstantial

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In such cases, direct evidence is considered before delving into the McDonnell Douglas tripartite standard applied
to circumstantial evidence.

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evidence of Plaintiff’s discrimination arguments. Ondricko v. MGM Grand Detroit, LLC, 689
F.3d 642, 649 (6th Cir. 2012) (internal citation omitted). Thus, the Court must determine the
proper framework for Plaintiff’s Title VII claims prior to proceeding in its analysis.
It is well established that a mixed motive analysis will only be triggered in Title VII
discrimination cases when the plaintiff has brought proper notice of his mixed-motive claims.
Spees v. James Marine, Inc., 617 F.3d 380, 390-91 (6th Cir. 2010) (citing Hashem-Younes v.
Danou Enters. Inc., 311 F. App’x 777, 779 (6th Cir. 2009)); see also Ondricko, 689 F.3d at 649.
Notice “can be triggered expressly by invoking the mixed-motive analysis or impliedly through
use of the motivating factor test in the complaint and responsive pleadings.” Ondricko, 689 F.3d
at 649 (citing Spees, 617 F.3d at 390). Here, Plaintiff brought notice of his mixed-motive
analysis in his motion for summary judgment. (See Plaintiff’s Motion for Summ. Judg., Doc. 77
at 21, 29). Furthermore, Plaintiff alleges that he gave notice of the mixed-motive analysis in
paragraph 34 of the Complaint, which states, “Defendant Vedra identified ‘the fact that he’s of
Arab descent’ and OHS was ‘too focused on Arab[s]’ as motivating factors for Plaintiff’s
termination.” (Complaint, Doc. 2 at 8). Plaintiff has thus met the notice requirement for
instigating a mixed-motive analysis, and the Court need only consider his Title VII claims under
that framework.
2. Mixed-Motive Analysis
The mixed-motive framework applies in cases “where an adverse employment decision
was a mixture of legitimate and illegitimate motives.” Wexler v. White’s Fine Furniture, Inc,
317 F.3d 564, 571 (6th Cir. 2003) (internal citation omitted). A plaintiff “can pursue a mixedmotive claim under Title VII based on direct evidence or solely on circumstantial evidence.”
Ondricko, 689 F.3d at 649 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100-01 (2003)).

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Under this analysis, “a plaintiff[] need only produce evidence sufficient to convince a jury that:
(1) the defendant[s] took an adverse employment action against the plaintiff; and (2) race, color,
religion, sex, or national origin was a motivating factor for the defendant's adverse employment
action.” Bartlett v. Gates, 421 F. App'x 485, n.1 (6th Cir. 2010) (citing White, 533 F.3d at 400).
Stated otherwise, “the ultimate question at summary judgment on a mixed-motive case is
whether the plaintiff has presented evidence, direct or circumstantial, from which a reasonable
jury could logically infer that a protected characteristic was a motivating factor in the
defendant’s [termination of] the plaintiff.” Williams v. Zurz, 503 F. App’x 367, 377 (6th Cir.
2012) (internal citation omitted).
It is undisputed that Plaintiff was terminated from his employment, thereby suffering an
adverse employment action. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584,
594 (6th Cir. 2007) (citing Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002) (a
termination can constitute a materially adverse employment action)). Thus, this analysis will
focus on the latter prong of the mixed-motive framework.
i. Direct Evidence
The Court first considers the direct evidence that Plaintiff proffers to demonstrate
Defendants alleged discriminatory actions. Direct evidence is evidence that, “if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employer’s actions.” Shazor v. Professional Transit Management, Ltd., 744 F.3d 948, 955 (6th
Cir. 2014) (citing Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006)).
Moreover, direct evidence “does not require a factfinder to draw any inferences in order to
conclude that the challenged employment action was motivated at least in part by prejudice

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against members of the protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.
2003) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).
Plaintiff points to Vedra’s testimony at the SPBR hearing in May 2011 as evidence that
Vedra made the recommendation that Strickrath terminate Alomari because Alomari is Arab.
First, when asked, “What was the impetus for this change from multicultural community
engagement to not multicultural community engagement?” Vedra responded by saying, in part,
“I wanted, a, a woman to send a signal to the community that – that you’re in America.” Next,
when asked, “So are you telling me now that his focus was on Muslim?” Alomari answers, “No.
The fact that he’s of Arab descent and I think there was some, you know, feelings that, you
know, we were maybe too focused on Arab.” In addition to Vedra’s SPBR testimony, Plaintiff
claims that Vedra’s supposed remarks, as reported by an “unnamed insider” for the Jawa Report,
shows that Vedra’s statements during his SPBR testimony are not random or isolated. Finally,
Plaintiff argues that ODPS’ differential treatment of Olen Martin can only be explained by
discrimination and retaliation.
Defendants argue that Plaintiff’s reliance on Vedra’s SPBR testimony is erroneous.
According to Defendants, the SPBR hearing was meant to be limited to Alomari’s employment
responsibilities for the two years prior to his termination, but the ALJ permitted questions about
Renata Ramsini, Alomari’s eventual replacement, for background purposes. Thus, Defendants
claim that Vedra’s testimony does not demonstrate what factored into the decision to terminate
Alomari, but rather the direction the Community Engagement Officer position would take
following Alomari’s termination. Moreover, Defendants emphasize that the SPBR testimony
took place months after Alomari’s removal. Defendants also stress that Alomari testified that no
one at ODPS ever commented about his ethnicity or national origin, nor made any statements

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about his religion or race. Further, Alomari was unable to recall any statements made by
Strickrath or Vedra that linked his termination to his allegedly protected speech.
Plaintiff has not demonstrated direct evidence of Title VII discrimination. Both the
SPBR testimony and the information included on The Jawa Report would require a reasonable
juror to draw inferences to find that Defendants’ allegedly discriminatory actions were
motivated, at least in part, by unlawful discrimination. See Grizzell, 461 F.3d at 719 (internal
citation omitted). Summary judgment, therefore, cannot be granted based on direct evidence.
ii. Circumstantial Evidence
Though Plaintiff has failed to proffer direct evidence of discrimination, the Court’s
analysis continues through an examination of the circumstantial evidence. Because Plaintiff’s
termination is an undisputed material fact, in order to survive summary judgment, he need only
“produce evidence sufficient to convince a jury that…‘race, color, religion…or national origin
was a motivating factor’ for [the termination].” Williams, 503 F. App’x at 375 (quoting White,
533 F.3d at 400) (internal quotation omitted).
Plaintiff relies entirely on Defendants’ allegedly preferential treatment of Olen Martin, an
employee whom Alomari considers to have been similarly situated. Plaintiff takes particular
issue with Defendants’ decision to conduct an investigation of Alomari based on his failure to
divulge his employment at CSCC, while choosing not to investigate Martin for receiving degrees
from an alleged diploma mill. According to Plaintiff, Defendants’ failure to investigate Martin is
based on the fact that Martin is a white, non-Muslim, while Alomari is an Arab Muslim.
Plaintiff further asserts that Defendants insistence that Martin’s degrees were not relevant to his
position does not justify Defendants choice not to conduct an investigation of Martin based on
allegations made by the Jawa Report.

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Defendants claim that Plaintiff does not have circumstantial evidence of discrimination.
Defendants draw a few distinctions between Alomari and Martin. First, Defendants argue that
Alomari and Martin cannot be considered similarly situated, because their individual jobs were
vastly different and had particular requirements. Martin did not report to Vedra, nor did he
perform the duties of testifying in front of a congressional committee. Martin was also not
placed on an advisory committee for DHS. Moreover, Defendants claim that Martin’s degree,
regardless of its merit, was not a necessary component of Martin’s employment. Conversely,
Alomari omitted his history with CSCC, and when probed about it, answered subsequent
questions with false information.
The threshold for summary judgment under the mixed-motive analysis is, undoubtedly,
lower than that applied under the McDonnell Douglas standard. Plaintiff, however, relies
heavily on speculation rather than undisputed facts. Plaintiff has not provided this Court with
evidence to indicate that there are disputed issues of material fact that meet the mixed-motive
burden of demonstrating that Defendants’ termination decision was improperly motivated by
Plaintiff’s race, religion, or national origin. Moreover, a reasonable juror could not objectively
conclude that Defendants decision to terminate Alomari was improperly motivated by Plaintiff’s
race, religion, or national origin. Defendants’ Motion for Summary Judgment on Counts I, II,
and V, is, therefore, GRANTED.

B. Hostile Work Environment
Plaintiff next raises a hostile work environment claim. As the Sixth Circuit has set forth:
Under Title VII, a plaintiff establishes a prima facie case of a
hostile work environment based on race, religion, or national
origin by demonstrating that (1) she was a member of a protected
class; (2) she was subjected to unwelcome harassment; (3) the
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harassment was based on race, religion, or national origin; (4) the
harassment unreasonably interfered with her work performance by
creating an intimidating, hostile, or offensive work environment;
and (5) the employer is liable.
Ejikeme v. Violet, 307 F. App'x 944, 949 (6th Cir. 2009) (citing Hafford v. Seidner, 183 F.3d
506, 512 (6th Cir.1999); Bourini v. Bridgestone/Firestone N. Am. Tire, L.L.C., 136 Fed.Appx.
747, 750 (6th Cir.2005) (prima facie elements are the same for claims of racial and religious
discrimination)). Plaintiff, however, improperly raised his hostile work environment claim for
the first time in his motion for summary judgment. A plaintiff may not defeat summary
judgment by asserting a claim that he did not plead in the complaint. Tucker v. Union of
Needletrades, Indus., and Textile Employees, 407 F.3d 784, 787-88 (6th Cir.2005) (instructing
that if discovery reveals a claim not previously raised, the plaintiff should seek to amend the
complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure); see also Serra v. Mary
Jane Elliott, P.C., 13-11814, 2014 WL 1608665, at *3 (E.D. Mich. Apr. 22, 2014) (“The proper
procedure for Plaintiff to raise this claim was to request leave to amend her complaint, not to
raise the claim for the first time in a motion for summary judgment or a summary judgment
response brief.”); Carter v. Ford Motor Co., 561 F.3d 562 (6th Cir. 2009) (plaintiff’s claim was
limited to theories relied upon during discovery). If Plaintiff wanted to raise a claim of hostile
work environment, he could have done so properly by seeking to amend his complaint pursuant
to Fed. R. Civ. P. 15. Because Plaintiff neglected to amend his Complaint and bring properly his
claim for hostile work environment, the Court will not consider it on summary judgment.

C. Race Discrimination and Retaliation Under 42 U.S.C. § 1981
Plaintiff brings two claims under 42 U.S.C. § 1981: race discrimination and retaliation for
opposing discrimination. Defendants argue that, pursuant to the Sixth Circuit’s interpretation
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and application of Jett v. Dallas Independent School District, 491 U.S. 701 (1989), Plaintiff’s §
1981 claims are barred. Plaintiff counters that, because his position could be reinstated, his §
1981 claims are valid. In McCormick v. Miami University, the Sixth Circuit reaffirmed the
court’s prior holdings that § 1983 is the sole remedy for § 1981 violations committed by state
actors:
Whether the violation of § 1981 is committed by a municipality
through its policies or custom, or individuals acting under the color
of state law, § 1983 contains an express clause permitting an
aggrieved person to sue the state actor for money damages. Section
1983's express clause permitting these suits obviates the need to
imply the same right under the general provisions of § 1981.
Accordingly, we conclude that § 1983 is the exclusive mechanism
to vindicate violations of § 1981 by an individual state actor acting
in his individual capacity.
693 F.3d 654, 661(6th Cir. 2012); see also Mensah v. Michigan Dep’t of Corr., 513 F. App'x
537, 538 (6th Cir. 2013); Woo Young Chung v. Berkman, 13-CV-1354, 2013 WL 4523513 (N.D.
Ohio Aug. 26, 2013), appeal dismissed (Mar. 31, 2014); Machie v. Detroit Library Com’n, No.
12-15299, 2014 WL 2648521, at *6 (E.D. Mich. June 13, 2014). Because Plaintiff’s § 1981
claims were committed by individuals acting under color of state law, and Plaintiff did not
prosecute those claims under § 1983, Plaintiff’s claims were improperly brought. As such,
Plaintiff’s § 1981 claims are barred, and Defendant’s Motion for Summary Judgment is
GRANTED on Counts III and IV.

D. First Amendment Retaliation Claim
To establish a claim of retaliation under the First Amendment, Plaintiff’s complaint must
set forth three elements: (1) Plaintiff was engaged in a constitutionally protected activity;
(2) Defendants’ adverse action caused Plaintiff to suffer an injury that would “likely chill a

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person of ordinary firmness from continuing to engage in that activity”; and (3) the adverse
action was motivated at least in part as a response to the exercise of Plaintiff’s constitutional
rights. Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). As this Court
has previously established, Plaintiff’s termination constitutes an adverse action. Thus, the Court
need only address the first and third prongs of the First Amendment retaliation claim below.
1. Constitutionally Protected Speech or Conduct
When considering whether Plaintiff’s speech, as a government employee, warrants First
Amendment protection, the Court must first determine whether the employee spoke as a citizen,
and the employee must have addressed a matter of public concern. Weisbarth v. Geauga Park
Dist., 499 F.3d 538, 542 (6th Cir. 2007). In Housey v. Macomb County, the Sixth Circuit
clarified the framework used to determine whether a government employee’s speech is protected:
a public employee's speech is only protected when: (1) it touches
on “a matter of public concern,” Connick v. Myers, 461 U.S. 138,
146 (1983); (2) it is not uttered pursuant to the employee's “official
duties” but rather “as a citizen,” Garcetti v. Ceballos, 547 U.S.
410, 421, 424, (2006); and (3) the employee's interest in the speech
outweighs the government's interest in promoting “the effective
and efficient fulfillment of its responsibilities to the public,” id. at
450. All three are necessary but not sufficient conditions. Evans–
Marshall v. Bd. of Educ. Of the Tipp City Exempted Vill. Sch.
Dist., 624 F.3d 332, 338 (6th Cir. 2010).
534 F. App'x 316 (6th Cir. 2013).
It is well settled that “a matter of public concern usually involves a matter of political,
social, or other concern to the community.” See v. City of Elyria, 502 F.3d 484, 492 (6th Cir.
2007) (internal citation omitted). The rationale behind protecting a government employee’s right
to comment as a citizen on matters of public concern is that “public employees are often the
members of the community who are likely to have informed opinions as to the operation of their
public employers, operations which are of substantial concern to the public.” City of San Diego
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v. Roe, 543 U.S. 77, 82 (2004). A government employee must also demonstrate that his or her
interest in the speech outweighs the government’s countervailing interest in promoting the
efficiency of the public service it provides as an employer. Pickering v. Bd. of Ed. of Twp. High
Sch. Dist. 205 Will Cmty., Ill., 391 U.S. 563, 568 (1968). This determination is a question of law
for the court to decide. Connick, 461 U.S. at 147. As the Supreme Court explained in Garcetti
v. Ceballos:
The Court’s decisions, then, have sought both to promote the
individual and societal interest that are served when employees
speak as citizens on matters of public concern and to respect the
needs of government employers attempting to perform their
important public functions. . . . Underlying our cases has been the
premise that while the First Amendment invests public employees
with certain rights, it does not empower them to constitutionalize
the employee grievance.
547 U.S. 410, 420 (2006) (citations omitted).
Defendants claim that all of Alomari’s allegedly protected speech was made in relation to
his job duties as a Multicultural Affairs/Community Engagement Officer, thereby making the
comments part of his employment. Relying on the Weisbarth court, Defendants insist that
Alomari’s speech should not be considered constitutionally protected. Weisbarth v. Geauga
Park Dist., 499 F.3d 538, 544-45 (6th Cir. 2007) (in determining whether employee’s speech is
constitutionally protected, the court must consider “whether the employee communicated
pursuant to his or her official duties.”). Alomari was expected to engage in an analysis of the
various trainings, including those about which he complained. Thus, Defendants proffer that his
statements were part of his official duties. Additionally, Alomari has failed to present any
examples of speech that was not related to his official duties. Finally, because Alomari’s speech
primarily concerned his complaints about the direction of future OHS and DHS training sessions,

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and employee grievances are not inherently constitutionally protected7, Alomari’s speech does
not meet the first prong of the First Amendment retaliation analysis.
Plaintiff asserts that his speech was as a concerned citizen, not in relation to his job, and
therefore must be considered constitutionally protected. Alomari complained about the trainings
that he considered too racially and religiously biased for two reasons. First, he claims that he
was worried that the trainings would spread incorrect information that could possibly lead to
harm to citizens. Second, Alomari states that he believed the trainings were counter to the
purpose and focus of the Community Engagement Office, OHS, and DHS. Alomari alleges to
have complained to certain people outside his chain of command, intimating that doing so lends
itself to speaking as a concerned citizen rather than in connection with his employment. Plaintiff
further argues that his speech concerned only issues that were a matter of public concern,
because they dealt with the public’s trust, safety, and management of public monies.
Plaintiff has failed to demonstrate that his speech should be constitutionally protected.
First, Alomari has not presented adequate evidence that would lead a reasonable juror to find that
he was speaking as a citizen, and not as part of his official duties, when he voiced his complaints
about the training sessions. Second, Plaintiff has failed to demonstrate that his complaints
regarded matters of public concern. Plaintiff has not pointed to any issues of material fact
regarding the training sessions with which he takes issue. The Court considers his speech to be
directly related to his job duties, and, therefore, not constitutionally protected under First
Amendment Retaliation. As such, summary judgment on Count VI is GRANTED.
2. Causal Connection

7

See Defendants’ Motion, Doc. 60 at 43, citing Garcetti, 547 U.S. at 420.

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Even if Plaintiff had demonstrated that his conduct was constitutionally protected, a
reasonable jury would not be able to find that he had shown a causal connection between his
termination and his allegedly protected conduct.
Under the next prong of First Amendment retaliation, the Court must consider whether
the adverse action was motivated at least in part as a response to the exercise of Plaintiff’s
constitutional rights. In the case sub judice, Plaintiff must demonstrate that his protected speech
and his termination were causally connected. See Vereecke v. Huron Valley School Dist., 609
F.3d 392, 399 (6th Cir. 2010) (citing Thaddeus-X, 175 F.3d at 399). The Sixth Circuit has set
forth the two-step test in determining causation in retaliation actions:
A plaintiff must show both (1) that the adverse action was proximately caused by
an individual defendant's acts, Siggers–El v. Barlow, 412 F.3d 693, 702 (6th Cir.
2005), but also (2) that the individual taking those acts was “motivated in
substantial part by a desire to punish an individual for exercise of a constitutional
right,” Thaddeus–X, 175 F.3d at 386.
King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) cert. denied, 133 S. Ct. 985 (U.S. 2013).
Defendants allege that Alomari is unable to show that there was a causal connection
between his termination and his protected conduct. Defendants claim that there is no evidence to
indicate that Strickrath, the ultimate decision maker in Alomari’s termination, had any
knowledge of Alomari’s protected speech. Rather, Strickrath received the AI report and made
the decision to end Alomari’s employment based off of that. Moreover, Alomari is unable to
demonstrate that he ever discussed the issue with Strickrath. Because Alomari cannot link his
removal to his speech, Defendants maintain that Alomari cannot meet the burden of showing that
there is a causal connection between his allegedly protected activity and his termination.
Plaintiff contends that the temporal proximity between Plaintiff’s protected conduct and
his subsequent termination is sufficient to show the causal connection between the two.
According to Plaintiff, there was a twelve-day period between his last complaints and Vedra’s
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decision to begin an investigation concerning Alomari. Additionally, less than three months
elapsed between Alomari’s final complaint and his termination. Alomari insists that, even if the
temporal proximity between his conduct and termination are insufficient to show causation, he
has other evidence. Namely, ODPS’ preferential treatment of Olen Martin, a similarly situated,
white, non-Muslim employee.
Plaintiff fails to present any concrete evidence to support his causation argument. Rather,
he resorts to speculation, suggesting that the temporal proximity alone should guide this Court to
find on his behalf. Alomari’s evidence does not show that his termination was proximately
caused by an individual Defendant’s acts, nor that that individual was motivated by his or her
desire to retaliate against Alomari for exercising a constitutional right. Stated otherwise, a
reasonable juror, taking the facts in the light most favorable to Plaintiff, would not find that
Plaintiff has met his burden for First Amendment retaliation.
The Court need not continue its analysis by examining whether Defendants’ can show
“by a preponderance of the evidence, that the employment decision would have been the same
absent the protected conduct.” Dye v. Office of the Racing Com’n, 702 F.3d 286, 294 (6th Cir.
2012) (internal citation omitted). Defendant’s Motion for Summary judgment on Count VI is
GRANTED.

E. Qualified Immunity
Defendants’ final argument is that Defendants Vedra and Strickrath are entitled to
qualified immunity for the claims brought against them in their individual capacities.
The Supreme Court has held that “government officials performing discretionary
functions, generally are shielded from liability for civil damages insofar as their conduct does not

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violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotations and citations
omitted). An official is immune from both damages and suit if qualified immunity is applicable.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The plaintiff carries the burden of proof to show
that the defendant is not entitled to qualified immunity. Wegener v. City of Covington, 933 F.2d
390, 392 (6th Cir. 1991).
This Circuit employs a two-step process when deciding questions of qualified immunity,
which is a question of law. Bell, 308 F.3d at 601. First, a court must determine whether, on the
plaintiff’s facts, a constitutional violation has occurred. Hoover v. Radabaugh, 307 F.3d 460,
465 (6th Cir. 2002). Second, the court considers whether “the platintiff’s constitutional right was
clearly established.” Kiessel v. Oltersdorf, 459 F. App’x 510, 515 (6th Cir. 2012).
Defendants argue that Defendants Strickrath and Vedra should be granted qualified
immunity for the claims brought against them in their individual capacities. According to
Defendants, Alomari has failed to show that he suffered a constitutional violation. Moreover,
even if there was a constitutional violation, Defendants argue that there is no way they could
have been on notice of such violation, thereby warranting the shield of qualified immunity. See
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (discussing the notice requirement inherent in qualified
immunity inquiries).
Plaintiff asserts that Defendants should not be granted qualified immunity for two
reasons, both of which are directly linked to his claim of First Amendment retaliation. First,
Plaintiff insists that he has established a First Amendment violation. Second, Alomari claims
that Vedra and Strickrath had to have understood that terminating Alomari’s employment for

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“engaging in protected speech,” was a constitutional violation of Alomari’s rights. (Plaintiff’s
Resp., Doc. 80 at 44).
Plaintiff failed to establish that he suffered First Amendment retaliation. Without a
constitutional violation, the Court cannot apply qualified immunity. Thus, this claim is MOOT.

V. CONCLUSION
For the foregoing reasons, Defendants’ Motion is GRANTED, and Plaintiff’s Motion is
DENIED. This case is DISMISSED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Dated: August 13, 2014 

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